[0:17] that's one too Sharon I good all right welcome everybody this is the
[0:22] call to order for the chese beach uh
[0:24] board of appeals June 18th
[0:26] 2024 uh as a brief introduction we're
[0:29] here today to uh start with some
[0:31] administrative business meeting minutes
[0:33] and receip of comments uh followed by
[0:36] allowing questioning of Mr Donovan and
[0:38] Mr Woodburn by folks who have not
[0:40] already done so um then questioning of
[0:43] Mr blitz's presentation uh and if all
[0:46] that wraps up in time we will begin Mr
[0:48] pound's presentation
[0:50] by house uh we start with the roll call
[0:55] I will go around please announce that
[0:57] you're present Mr Richard Burch present
[1:00] Mr Paul dhy present Everett present I am
[1:04] Mr we have a quorum uh we will start
[1:07] with the approval of the meeting minutes
[1:09] for case
[1:11] 20233 from the May 29th session both
[1:14] open and close uh does any board member
[1:17] have issues with the meeting minutes
[1:19] they were
[1:22] provided hearing none uh I will
[1:25] entertain a motion to approve the
[1:27] minutes I will make that motion have a
[1:30] second second all in favor I right
[1:35] approved um okay the board uh is in um
[1:40] board acknowledges uh receipt of
[1:43] rebuttal
[1:44] submissions um in this case for case
[1:46] 2020 uh
[1:48] 303 uh regarding exhibit 70 uh we re
[1:52] reiterate that the board has read them
[1:54] and we'll take them under
[1:55] advisement uh Sharon have we received
[1:58] any other public com ments no you okay
[2:03] we continue on
[2:11] um you mind
[2:13] proving oh that was his okay yeah all
[2:17] right um okay um we continue with case
[2:21] 20233 Rod real Incorporated Don Estates
[2:24] LLC to consider an application from the
[2:26] rod real Donovan Estates of 4160 M
[2:29] Avenue uh Chesapeake Beach Maryland for
[2:31] decision on interpretation or Alle
[2:33] alleged error to article 6 section 29023
[2:37] 29031 A1 and A6 of the chese beach
[2:40] zoning ordinance and uh C309 c310 and
[2:43] c311 of the Chesapeake Beach Town
[2:45] Charter applicant requests that the
[2:47] Chesapeake Beach zoning board of appeals
[2:50] to quote order the zoning administrator
[2:51] and planning and zoning commission to
[2:53] immediately commence and prioritize the
[2:55] processing and review of the relevant
[2:56] site plan submitted by Rod rail
[2:58] Incorporated Donovan Estates l
[3:00] and that the zoning administrator and
[3:01] planning and zoning commission be
[3:03] ordered to apply the zoning ordinances
[3:04] in effect as of January 29 2021 when the
[3:07] applications were submitted and for
[3:09] other uh and further relief as the
[3:11] nature of their cause
[3:13] requires okay uh we are going to move
[3:15] into a bit of question and answer um I
[3:19] understand that Mr Woodburn needs to
[3:21] leave a little bit early so we will
[3:22] start with him um this is for anybody
[3:25] who has not already questioned Mr
[3:27] Woodburn um if you would like to
[3:30] uh please step forward and announce who
[3:31] you are who you represent and enter your
[3:33] name and address on the signing sheet um
[3:36] and then we will ask the witness to
[3:37] respond to any questions into the mic
[3:39] next to Mr
[3:44] Blitz Daniel
[3:46] deal uh I do have questions but until
[3:49] the previous correspondents have been
[3:51] replied to I'm uh would hold my question
[3:55] so the the problem is that I think this
[3:57] is the only time we we've asked the
[3:59] witness to come back here um kind of out
[4:02] of turn so to rectify um some confusion
[4:07] on behalf of the public who didn't who
[4:09] weren't clear that they were going to
[4:10] get to ask him questions um so I cannot
[4:13] he's he's come back today voluntarily um
[4:16] and I'm not sure if we will be able to
[4:18] provide him again later so um if you
[4:21] have questions for the testimony Mr
[4:22] Woodburn provided you're welcome to ask
[4:24] them yeah but I understand but I mean
[4:28] the even now allegations of towards
[4:31] board I I I I think
[4:34] it yes I do but not at the price that it
[4:38] it's a it's just a if the board is going
[4:43] to be threatened with a lawsuit if they
[4:45] were to look at it I don't see how me
[4:47] just a general person from the public
[4:49] that has no relation to a new of it
[4:51] that's just an observant could find any
[4:55] protection I hear
[4:57] you he did this did you say your name
[5:01] Dan thank you um yeah we at this there's
[5:06] going to be more time to talk about
[5:09] concerns of the public during the public
[5:10] session um this is specific to
[5:13] information Mr Woodburn provided so
[5:14] you're welcome to bring that up again um
[5:17] is there anybody else who would like to
[5:18] ask questions to Mr
[5:20] Woodburn can you confirm that you have
[5:22] not already questioned Mr Woodburn dur I
[5:25] have not I think I only question West
[5:28] Donovan though though I uh would take
[5:31] offense to to that you haven't you
[5:33] haven't held anybody else accountable to
[5:37] certain Rules and Things so you would
[5:38] say that I wouldn't be able to question
[5:40] Donovan again as it is I don't have any
[5:42] questions for him but no I I have not uh
[5:46] questioned the
[5:48] engineer no
[5:50] see yes okay so Randle Gman 3248 Ana
[5:55] Chase chese Beach Maryland
[6:02] I have been sworn in
[6:06] before I don't know if I need to can you
[6:09] hear me
[6:10] okay
[6:13] so Paul um so so uh you were the town
[6:19] engineer were that was that full-time or
[6:21] part-time uh part-time part time and and were you the town engineer when the
[6:27] projects before the board of appeals
[6:29] were
[6:30] submitted to the town the projects that
[6:33] are currently in yeah no so you weren't
[6:36] the town engineer at that time
[6:38] no so they didn't have a town engineer
[6:42] uh they have I I don't want to speak for
[6:44] the town but I believe it's Wayne Newton
[6:46] is the town engineer at that time
[6:50] yes so so you were not the town engineer
[6:55] when these projects came came in you
[6:57] were not under any you weren't being
[6:59] paid by them at any
[7:01] time
[7:15] okay most of my questions were based on
[7:18] that so
[7:24] um so when you went before the Planning
[7:28] Commission uh you were just talking
[7:31] about the project from uh from the
[7:34] standpoint of RNR not from town engineer
[7:37] you were you were not the town engineer
[7:39] we didn't get to the Planning Commission
[7:41] you didn't no uh so you just helped uh
[7:44] develop the uh drawings and such so
[7:49] that for this for this current here yeah
[7:52] for this current hearing um the uh plans
[7:57] never made it to the commission they
[7:58] didn't get reviewed way I understand it
[8:01] so it never made it to that level okay
[8:05] so when these plans were originally
[8:07] submitted back
[8:09] in January 29 2021 2013 or no oh no e
[8:15] plans yeah here when plans were origin
[8:19] when the when when the first plans were
[8:22] submitted uh for these Pro projects were
[8:26] you the town engineer at that time so
[8:29] you're saying when there was previous
[8:31] submittals on these projects not not the
[8:34] current application yeah this was a
[8:36] reapplication right the other one went
[8:37] away the other approval went away in
[8:39] 2018 right yes I was engaged on projects
[8:44] for the town yes so you were engaged on
[8:47] projects for the town and you were also
[8:50] working on the uh these projects as well
[8:54] uh for this
[8:55] company um I could yeah probably yeah
[9:03] okay back
[9:06] then when when when uh so when these
[9:10] were submitted to the town you were the
[9:12] town
[9:13] engineer uh I being paid by the town yes
[9:16] to do Town Projects but not the not
[9:19] these projects not new developments not
[9:20] these projects these projects would be
[9:22] reviewed by the zoning administrator
[9:25] okay it's not me
[9:27] yeah okay let me see if I have any other
[9:30] ones that kind of U clarifies it
[9:40] out all right
[9:45] thanks anyone else like to step forward
[9:48] and ask questions of Mr
[9:52] Woodburn or any board members as well
[10:15] no I'm just trying to remember but you
[10:16] were saying you have said in the past to
[10:19] correct me if I'm wrong that when these
[10:21] plans came in there was another engineer
[10:24] you were unsure of who it was that was
[10:25] dealing with these plans at that time uh
[10:28] I believe is Wayne Newton
[10:30] but they never got reviewed so I never
[10:32] got anything formal back right some of
[10:35] these plans were developed earlier than
[10:38] 2021 they were there were carryover
[10:40] aspects right and you worked for you
[10:41] were saying you worked for the town at
[10:43] both times so there was previous
[10:44] approvals on these sites not the current
[10:46] application you this current application
[10:49] things changed uh but the uh previous uh
[10:54] plans that you know my office would have
[10:56] prepared um they would have been
[10:58] submitted to the zoning administrator
[11:00] and who they when I say they mean the
[11:03] town and the zoning administrator used
[11:04] to review the plans I I'm not 100% sure
[11:07] but I can remember Chris jbak he's the
[11:10] zoning administrator at the time um and
[11:13] Bill Watson he was the zoning
[11:16] administrator before Mr
[11:18] jabak um and they did have other uh
[11:22] reviewers uh that the town engaged but I
[11:25] don't remember all of them
[11:34] all right thank you Mr Woodburn thank
[11:36] you safe to release him yes have a good
[11:39] trip yeah
[11:41] appreciate um now the same thing we will
[11:44] take questions of Mr Donovan if you have
[11:46] not already asked Mr Donovan questions
[11:49] during his previous
[11:51] testimony please step forward announce
[11:54] your name enter on the signning sheet
[12:01] none do I have to do the same thing or
[12:04] it's same same
[12:07] issue Daniel Deval previous
[12:24] Reserve uh any board members have oh
[12:26] apologies apologies
[12:30] questions of Mr Donovan yes uh if you
[12:33] didn't announce your name if you would
[12:35] my name is Laura Blackwelder 3256 Canon
[12:38] K Court J Beach Maryland
[12:49] 20732 I just go ahead and start oh yeah
[12:52] one
[12:54] okay have my written questions with
[12:57] me um
[12:59] Mr Donovan hello hello uh you had prior
[13:05] approvals to this during the 2010
[13:09] comprehensive plan
[13:11] correct for for all of these site plans
[13:13] or which ones did you have approvals
[13:16] for it it definitely wasn't all of them
[13:22] um and in
[13:26] 2010 we now this is you're tested in my
[13:30] memory because this is 14 years
[13:32] ago
[13:34] so I don't think we had approvals for
[13:39] any of them I think the previous owner
[13:42] of harba Vista North might have had one
[13:47] when they owned the property and it stet
[13:50] it it was not
[13:53] um it was not for the 11 tow houses it
[13:57] was a totally different design and
[14:01] development but that's really tested my
[14:04] memory there okay so your testimony is
[14:07] that none of these particular projects
[14:11] have ever had approvals no that's not no that's
[14:15] yeah
[14:18] appr okay I ask a different question
[14:20] maybe I'll rephrase it thank you yeah
[14:24] um which of
[14:27] these um proposals that as part of your
[14:31] appeal are you claiming has had previous
[14:38] approvals
[14:41] um the the same thing applies going back
[14:45] to my knowledge
[14:47] Harbor now let me think Harbor Vista
[14:50] South was previously
[14:52] approved in 2016 but I think the design
[14:57] changed um
[15:02] but it nothing that we submitted
[15:06] in uh January of
[15:09] 21 was exactly the same as the previous
[15:15] approvals okay so basically anything in
[15:18] this appeal that
[15:20] claims
[15:22] that these should have been approved or
[15:25] the your owed
[15:26] money um because these were previous ly
[15:29] approved or somehow you were wronged
[15:31] because at one time these were approved
[15:33] and now they're not um and we tar and
[15:37] the Planning Commission was targeting
[15:39] you during comprehensive
[15:44] planning couldn't be true I don't think
[15:47] we question just too many C well we've
[15:50] never made any of those claims but
[15:52] you're talking about Miss Blackwater
[15:54] there there's a lot of um arguments a
[15:58] lot of arguments have been made that
[15:59] these have been previously approved and
[16:01] therefore it is logical to now approve
[16:04] them
[16:06] again um
[16:08] so that's okay I I you don't have to
[16:10] answer that my question to you
[16:13] is if some of these were approved
[16:18] previously why did you not go through
[16:21] with your
[16:24] development I'm pretty sure I've already
[16:26] testified on that same exact question
[16:29] you have but you should be allow be
[16:31] required to ask answer that of Miss
[16:33] Blackwelder when she crosses so um it
[16:38] was the financial
[16:40] crisis um was was definitely part of it
[16:44] and then with Harbor Vista South um when
[16:48] we got that
[16:50] approval the
[16:52] construction delays and then I believe
[16:55] we were delayed by um I think it was
[16:59] Army Corps of
[17:00] Engineers on some of the approvals at
[17:04] the Ry re Resort
[17:06] Redevelopment
[17:08] um it we were using that lot as parking
[17:12] for our customers and
[17:15] employees just like we were at harb of
[17:17] Vista North and harb of Vista
[17:20] West um and those delays allowed for the
[17:26] uh Harbor Vista South
[17:29] um approval to
[17:31] lapse
[17:34] um and Harbor Vista self as the only
[17:37] site plan that you are claiming had
[17:41] approval at any given time no I I didn't
[17:44] say
[17:45] that
[17:51] okay
[17:53] if you while you let your approval
[17:56] elapse MH did you you
[18:00] revise any other approvals or submit for
[18:03] any other approvals did you build
[18:05] something else instead of following
[18:07] through with what you had approval
[18:10] for we haven't built
[18:13] anything in the zoning you built the rod
[18:15] and re
[18:16] Resort well I'm talking about these sure
[18:20] talking about on these five Parcels um
[18:24] and the zoning changed during the course
[18:28] you know so we haven't built
[18:31] anything right so you had approvals
[18:34] which gave you the
[18:35] opportunity to act on your
[18:38] approvals however you decided to build
[18:41] something
[18:42] else is that
[18:45] correct and you acted on those approvals
[18:51] instead
[18:54] um again we didn't build anything on
[18:56] these five parcels
[18:59] correct but you did have the opportunity
[19:02] to build are you asking if we were still
[19:04] cooking french fries and at the
[19:06] restaurants yeah we were doing both at
[19:08] the same time putting heads in beds so
[19:13] you know I I'm not too
[19:16] sure you
[19:18] know we got the approval for the rod re
[19:21] development in 2016 the
[19:25] Redevelopment and we mve forward with
[19:28] that
[19:30] right you moved
[19:32] forward and you
[19:36] revised
[19:38] correct yes and when you revise did you
[19:42] not add 13 or 14 hotel rooms and double
[19:48] the the space of your gaming facility No
[19:52] Object just because she's asking about a
[19:53] development that's not the subject of
[19:55] any of these applications it just is not
[19:57] relevant
[20:03] she's asking about the rod and real
[20:05] Redevelopment that's a total it's not
[20:06] subject to this hearing I think that
[20:09] this speaks for development within the
[20:11] town and
[20:13] by you know your client I personally
[20:16] think it does you know have some kind of
[20:19] relevance at least to be able to hear
[20:22] it fair enough uh the objection is
[20:24] overrule you may uh restate and answer
[20:27] the question
[20:31] so my question
[20:34] is you had
[20:37] approvals or you're claiming you had
[20:39] approval for Harbor Vista
[20:42] South and you knew that comprehensive
[20:45] planning was
[20:47] happening and you knew that there were
[20:50] concerns about um capacity and things
[20:56] like that and you you obviously knew
[21:00] that there was
[21:02] a expansion of the gaming
[21:05] Hall and an expansion of the
[21:08] hotels at the Roden reil site so
[21:12] wouldn't it have been logical to assume
[21:14] that during comprehensive
[21:16] planning the town might need to adjust
[21:19] to those things
[21:23] and why didn't you move forward with the
[21:25] approvals that you had when it was such
[21:27] a risk
[21:30] well I
[21:32] think you stated a whole lot of opinions
[21:35] there not relevant facts concerning the
[21:39] Roden
[21:41] Redevelopment and I don't remember what
[21:44] exactly the um traffic study
[21:48] said
[21:50] um but we did do a traffic study when we
[21:54] got the approval for the rotten re
[21:56] Redevelopment and
[21:58] um harva Vista South as well
[22:03] and I the the wastewater treatment plant
[22:06] at the time has plenty had plenty of
[22:09] capacity as it still does
[22:12] today and the traffic studies showed
[22:16] that um traffic would not be a problem
[22:20] once route 261 had the left turn
[22:24] lane um built and the bridge got wider
[22:31] but uh every everything
[22:34] else um in your question
[22:37] was was definitely more opinion than
[22:40] what what I
[22:42] recall but I hope with the traffic study
[22:45] and the treatment plant having the
[22:47] capacity answers your
[22:50] question and so the traffic studies from
[22:53] the previous approvals did
[22:56] not account for
[22:59] the double size of the game room or 14
[23:02] extra hotel
[23:03] rooms and your traffic studies for these
[23:06] approvals were sub were taken during Co
[23:10] is that
[23:12] correct
[23:15] um well we never submitted that well I
[23:20] shouldn't say because I'm not too sure
[23:22] if we submitted a traffic study with
[23:25] these five sight plans um I think what
[23:28] we did was an amendment because the
[23:33] hotel
[23:35] Redevelopment wasn't isn't complete yet
[23:38] so um but you keep saying we doubled the
[23:42] size of the game room and that's that's
[23:46] um not true we we
[23:49] are we're allowed 278 machines and
[23:53] that's all we have and that's all we had
[23:57] so we we did not double the size of the
[24:00] game
[24:01] room
[24:03] so and then
[24:08] um I I don't
[24:11] uh I don't know if that answers your
[24:13] question or not
[24:17] but well the the capacity of your
[24:19] building would be based on the the
[24:21] square footage of your rooms
[24:25] no it's it's based on seat count
[24:31] and you're saying the capacity of your
[24:33] building only accounts the seat count of
[24:36] the machines that you have is that what
[24:39] you're claiming under
[24:41] testimony I don't really know what the
[24:43] relevance is of this we're talking about
[24:45] the board of appeals for the five site
[24:48] plans so if I could
[24:50] just intervene to
[24:54] help the calculation of capacity for
[24:57] what purpose so there's a calculation
[25:00] for the purposes of determining the uh
[25:04] off street parking requirements there's
[25:06] a requirement for the edus that may be
[25:11] necessary there's different requirements
[25:13] under building codes for Life
[25:16] Safety the all of the different uses at
[25:19] the resort property have different
[25:23] methods of calculation so I'm just
[25:26] offering that to help you ask the
[25:27] questions I think think you're trying to
[25:29] get to so when you if you're talking
[25:32] about the gaming room then you could
[25:34] just focus just on the gaming room but
[25:36] obviously the whole property has many
[25:38] other uses that also have different
[25:39] methods of
[25:41] calculation
[25:42] sure um and I don't want to make this
[25:45] too
[25:48] painful my question is very simple
[25:53] um the traffic studies that you
[25:55] submitted
[25:58] were they
[26:00] current did they well first of all were
[26:03] they taken during Co during the covid-19
[26:09] pandemic um like I said previously we
[26:13] did traffic studies in
[26:15] 2016 I don't recall if we um actually
[26:22] amended those in 2020 and they were
[26:25] included in the site plan we submitted I just don't
[26:30] recall okay so if but this the original
[26:34] traffic studies were done in
[26:38] 2016
[26:40] now I will say the bridge we didn't have
[26:43] a new bridge yet in town but the traffic
[26:46] study did account for the new
[26:50] bridge
[26:53] okay so comprehensive planning was done
[26:56] during covid-19
[26:59] and it had started before then but sure um your plans were submitted during
[27:06] the
[27:07] pandemic and you
[27:09] were
[27:11] aware
[27:12] that the Planning Commission had
[27:15] concerns about
[27:17] traffic is that
[27:21] correct um I understand that to be true
[27:26] yeah okay so is
[27:29] could you have expected the Planning
[27:31] Commission to
[27:33] approve high capacity
[27:36] development in light
[27:38] of everything that was coming that
[27:41] everything that had come to the town
[27:43] since a last comprehensive planning
[27:45] period I object I don't see
[27:48] how her mind she was the planning ising
[27:53] at the time I don't see how he can
[27:55] answer for her she's got can what she
[27:59] I'll
[28:00] rephrase um she can ask the question we
[28:04] don't know her expertise of her was on
[28:07] the planning zoning at that
[28:09] time she she has the open floor to ask
[28:12] her questions
[28:15] until do you mind rephrasing the I'll
[28:18] try I wish I brought my uh picker
[28:22] question excuse me Mr Donovan can you
[28:25] please speak into the mic speak a little
[28:27] louder I'm having difficulty hearing you
[28:29] yeah yeah
[28:35] absolutely can you rephrase the uh sure
[28:39] um can you imagine a scenario where a
[28:43] Planning Commission might not want to
[28:47] approve a high capacity
[28:51] development with traffic studies that
[28:54] were taken 10 years prior even if
[28:56] amended
[28:59] when they have no ability to gauge the
[29:02] traffic based on new development that
[29:04] has occurred
[29:05] during previous 10 years calling for
[29:09] speculation it's just not an appropriate
[29:13] question
[29:20] sustained were you aware that site plans
[29:23] expire and
[29:25] that once you have a
[29:28] approval and authorization I think you
[29:31] had authorization for an extra year to
[29:35] entertain your
[29:37] approval were you aware that it could
[29:39] potentially
[29:41] expire
[29:44] yes and when you decided to let it
[29:50] expire were you aware that there was a
[29:53] risk that it would not get
[29:56] approved afterwards
[29:59] at that time no because the zoning was
[30:01] still in
[30:04] place now if the zoning changed well
[30:07] then yes obviously but at the time that
[30:11] they expired the zoning was still the
[30:14] same so I I would have no reason to
[30:16] think
[30:17] otherwise but you do understand and you
[30:20] did understand what comprehensive
[30:22] planning does
[30:24] correct yeah you've had rezoning occur
[30:29] in town before that you knew of is that
[30:31] correct too yes
[30:35] okay no further
[30:48] questions so I had voiced my concern and
[30:52] the reason I had voiced it is because
[30:54] there might be something said uh when he was asked
[30:58] questions uh that made me want to ask
[31:00] another question and actually I really
[31:02] have only the same questions from the
[31:04] first
[31:05] time are you gonna allow me to ask him
[31:08] you're gonna ask him the same question
[31:10] you asked him during his original
[31:11] testimony
[31:13] uh about this I'm gonna ask about some
[31:16] things she just talked
[31:19] about No Object because the ruling was
[31:22] we were only taking people that had
[31:25] previously not had a chance to ask
[31:27] questions Mr getman has asked questions
[31:30] yes otherwise we'd open a door I agree
[31:34] I'm sorry you cannot ask answer or ask
[31:36] okay I just want that on record on the
[31:40] record all
[31:42] right uh anyone else want to question Mr
[31:48] Donovan board
[31:52] members two questions
[31:55] um I have two questions for you
[31:58] um with these properties I know I had
[32:00] asked you before um if anything else had
[32:02] happened with these properties but did
[32:04] you were any of these properties do you
[32:06] ever try to sell them or use them for
[32:08] any other purpose than what you what
[32:11] you've had
[32:14] planned no no okay and um the attorney
[32:19] that was here the other week um said he
[32:22] was an expert on imminent domain you had
[32:24] expressed that right that was in our
[32:28] he didn't say he was an expert he can't
[32:30] say he's an expert attorneys can't hold
[32:32] themselves out as an expert okay so
[32:33] that's Amy terminology that he focused
[32:36] on that field or for the termin wasn't
[32:39] iment I mean it was a taking it's a
[32:41] different type of
[32:44] law
[32:51] um the note the minutes and what we said
[32:55] is that he specializes in the area of
[32:57] emminent domain an inverse
[33:01] condemnation Mr Blitz is that accurate I
[33:05] believe he did say that okay so but he
[33:08] wasn't I think Mr pound's point is
[33:11] nothing in this case is about eminent
[33:13] domain that is he may he may have been
[33:15] saying what he test what he practices
[33:18] What fields he is Mr pound is correct
[33:21] none of his testimony was about eminent
[33:22] domain it was about takings I understand
[33:25] that however if he is serving as Co
[33:28] counsel and that is a specialty Mr
[33:30] Donovan you had stated before that the
[33:33] reason why you then put in your claim in
[33:36] 2021 is that the Town Council had had a
[33:39] meeting and it sounded like they were
[33:40] going to have that they were considering
[33:43] eminent domain of your property and that
[33:45] concerned you and therefore you put in
[33:47] the paperwork with these applications
[33:49] did you then confer with your Council
[33:52] regarding that objection with respect to
[33:55] asking about conversations with Council
[33:57] okay that's privilege but you're fine
[34:00] until you said that last bid it was all
[34:02] fine how do you okay I I know how to I
[34:06] just found I think what you were talking
[34:09] about is when the Planning
[34:11] Commission um was talking about stets
[34:15] and those two Parcels that had been in
[34:18] our family since
[34:19] 1936 and making those a park that's what
[34:23] I was talking about and they said it on
[34:27] more than one occasion
[34:30] um I think that's what you're referring
[34:33] to yeah it just it piqu my curiosity
[34:35] when that that's the cause of us
[34:38] submitting the site
[34:42] plans I think that's I
[34:50] have all right thank you Mr Donovan sure
[34:54] all right
[35:01] okay um so at this point it will be more
[35:05] of uh blanket questions for Mr blitz's
[35:08] presentation um we'll be following the
[35:11] same guidelines established during our
[35:13] last session with Mr flip Fisher the
[35:15] line between cross- examination
[35:16] clarifying questions isn't something the
[35:18] board feels comfortable delineating the
[35:20] board has decided to allow questions
[35:22] this is not a court of law if lawyers
[35:24] feel that this violates their
[35:25] professional code of ethics they must
[35:26] use their judgment as to whether they
[35:27] can answer the question if one or more
[35:29] questions are declined to be answered
[35:31] the presentation will remain in the
[35:32] record and the record will reflect a
[35:34] refusal to answer questioner may profer
[35:36] as to what questions would be posed if
[35:39] given the opportunity same rules
[35:43] um Mr BS would you like to start
[35:45] questions if I could be heard first oh
[35:47] go ahead so you had
[35:49] asked for Council to come up with
[35:52] adequate
[35:53] procedures for having me testify in a
[35:56] case in which I am the
[35:58] attorney um and as I noted with respect
[36:01] to Mr fiser at the last hearing it's
[36:04] against the rules of professional
[36:05] conduct to act as an attorney in the
[36:08] same proceeding that you are testifying
[36:11] for on issues that are
[36:13] contested I'm going to read you the
[36:17] section of the professional rules of
[36:19] conduct so
[36:21] you understand it it's rule
[36:25] 19-33 point7
[36:28] and it says attorney is witness
[36:30] subsection
[36:31] a an attorney shall not act as an
[36:34] advocate at a trial in which the
[36:36] attorney is likely to be a necessary
[36:38] witness unless the testimony relates to
[36:42] UNC an uncontested
[36:44] issue the testimony relates to the
[36:46] nature and the value of legal services
[36:48] rendered in the
[36:49] case or the disqualification of the
[36:52] attorney would work substantial hardship
[36:54] on the client subsection B attorney May
[36:58] advocate in a trial in which another
[37:01] attorney in the attorney's firm is
[37:02] likely to be called as a witness unless
[37:04] precluded by rule
[37:07] 19-31
[37:10] D7 as I've stated repeatedly I have not
[37:14] acted as a witness in this proceeding
[37:17] but as an attorney making a presentation
[37:20] that included arguments about the
[37:22] relevance of the documents the
[37:25] documentary evidence that we had or
[37:28] the statutes that I'm directing your
[37:29] attention to that's not testimony none
[37:33] of that's in my personal
[37:35] knowledge personal knowledge is somebody
[37:37] called me and I tell you what they said
[37:39] or I I tell you what they said only I
[37:44] would have that
[37:46] knowledge that would be testimony I
[37:49] haven't given any of that
[37:52] and for example when I submit the
[37:55] records of the minutes of the meeting of
[37:57] the Planning and Zoning commission or
[37:58] the Town Council which we've had plenty
[38:00] of as an exhibit that doesn't mean I'm
[38:03] the sponsoring witness who has personal
[38:07] knowledge of those proceedings I wasn't
[38:09] at most of those proceedings probably
[38:11] the document submitted is the evidence I
[38:14] as a lawyer offer them as Government
[38:17] documents which even in a courtroom are
[38:20] come in under a hearsay exception is
[38:22] government
[38:23] documents and this hearsay doesn't apply
[38:26] in this proceeding anyway
[38:28] my point is that in offering those
[38:30] documents I'm not acting as a witness
[38:32] but as the lawyer and when I explain
[38:35] what the laws are as you know from all
[38:39] our previous hearings when I'm telling
[38:40] you directing your attention to various
[38:43] Charter Provisions or iite a case or
[38:46] describe what happened in that case in
[38:48] the
[38:49] decision I'm not testifying I'm acting
[38:52] as any lawyer would in presenting you
[38:55] the law that I think is relevant to this
[38:57] case
[39:00] now I should have known when Mr pound
[39:02] started making statements in the middle
[39:04] of my
[39:06] case which was back in February he
[39:10] started saying there was half truths
[39:12] being said and those half truths I
[39:14] believe related to my statements about
[39:16] his
[39:17] letter which I literally just read into
[39:20] the record and then it got converted
[39:22] into a whole question of whether I had
[39:24] ever been sworn we had two whole
[39:26] hearings about whether I had been sworn
[39:28] in the proper way to swear
[39:30] and and what I didn't realize now and
[39:34] what then but I do realize now is that
[39:38] was all just the predicate to try to
[39:41] disqualify the board's at the rod and
[39:44] reel's
[39:45] attorney from serving as their
[39:47] attorney that somehow I needed to become
[39:50] a witness it all starts with a false
[39:53] premise that I'm was in any way
[39:55] testifying I'd ask you to think what
[39:58] evidence have I offered as a
[40:01] witness what statement of fact that is
[40:04] in my personal knowledge that I offered
[40:07] to you I would say there's none so what
[40:10] would I be cross-examined
[40:13] on the danger and the reason I rais
[40:16] these
[40:17] points is that is exactly what you heard
[40:21] at the last meeting from Mr pounds
[40:24] because he made a profer of all the
[40:26] questions he was going to ask Mr
[40:29] Fischer and it was very instructive
[40:32] because at least half of these proferred
[40:34] questions have nothing to do with Mr
[40:35] feser's
[40:37] testimony and were often completely
[40:39] irrelevant to the case or any evidence
[40:41] that had thus far been
[40:43] provided that's why I can't allow myself
[40:46] to be subject to
[40:48] cross-examination under oath to a series
[40:51] of questions that have nothing to do
[40:53] with any testimony I gave if it was
[40:57] any testimony that was given I'd like it
[41:01] to be
[41:02] identified and I would probably ask that
[41:05] the board just strike that testimony
[41:06] because I don't think it's necessary to
[41:08] my case there's literally nothing I have
[41:10] said as that would come from my personal
[41:13] knowledge that has any bearing on any
[41:16] issue in this case it's just simply not
[41:21] testimony it's to ask me to testify
[41:26] again when it violates the rules of
[41:27] professional conduct is unfair and an
[41:31] unsupportable
[41:32] request therefore I'm going to
[41:34] respectfully decline to be subject to
[41:37] cross-examination by Mr pounds or any
[41:39] other party I will always answer
[41:42] questions of the board because those
[41:44] would not be in the nature of
[41:46] cross-examination I have a duty other
[41:48] than being sworn in I have a duty as an
[41:51] officer of the court to give you the
[41:54] truth as I know it regardless it has
[41:57] nothing to do with being a witness I I'm
[41:59] not supposed to make misstatements to
[42:01] you so I'm already under that obligation
[42:05] but I'm not going to start down the road
[42:08] that would effectively allow Mr pounds
[42:11] to later disqualify me in fact if if you
[42:14] started having me testify now I'd have
[42:15] to literally stop the case and say well
[42:17] I'm now out as the
[42:19] lawyer so when you ask whether it was
[42:22] possible to come up with procedures to
[42:25] accommodate that I simply said say that
[42:28] there
[42:30] aren't
[42:32] so the one thing I would ask you to
[42:34] think about
[42:37] is at the same time Mr pounds made the
[42:40] original request to cross-examine me he
[42:42] made the request to cross-examine your
[42:44] board's attorney Mr
[42:46] susman
[42:49] and the board ruled against having that
[42:52] occur because it would interfere with
[42:54] the relationship of the board with their
[42:56] attorney
[42:57] well that's exactly what would happen if
[42:59] I was subject to
[43:01] cross-examination I'd have to withdraw
[43:03] as
[43:04] councel so I'm just not going to do that
[43:07] if Mr pounds wants to make a profer like
[43:09] he did for Mr Fischer then I suppose we
[43:11] can listen to all the profit questions
[43:14] uh what I think you'll find is that
[43:16] they're all well beyond the scope of any
[43:18] direct quote testimony I made it won't
[43:22] involve testimony but it'll be questions
[43:25] about that are in the form of argument
[43:28] against our argument I would suggest
[43:30] that that's Mr pound's opportunity to
[43:32] put on his case but it's not done
[43:35] through cross-examination of me so again
[43:37] respectfully I understand your role I
[43:39] want to be supportive of your role but I
[43:41] can't be put in a position of being
[43:44] cross-examined in a case that I'm the
[43:46] advocate for the rod and
[43:49] reel I think we understand your position
[43:53] and
[43:57] is there anything you'd like to uh well
[43:59] first of all yeah thank you Mr chair um
[44:02] before at the you first mentioned
[44:05] something to Mr Blitz you mentioned the
[44:08] process about that he was going to have
[44:10] an opportunity to uh in Ence State his
[44:14] position with regard to examination did
[44:16] I hear that
[44:17] correctly uh sorry say that again uh and
[44:21] again I was I can read it again please
[44:23] um okay so we'll be following the same
[44:26] guidelines is established during our
[44:28] last session with Mr fiser the line
[44:29] between cross-examination clarifying
[44:31] questions isn't something the board
[44:32] feels comfortable delineating the board
[44:34] has decided to allow questions this is
[44:36] not a court of law if lawyers feel that
[44:38] this violates a professional code of
[44:40] ethics they must use their judgment as
[44:41] to whether they can answer the question
[44:43] if one or more questions are declined to
[44:44] be answered the presentation will remain
[44:46] in the record and the record will
[44:47] reflect a refusal to answer a questioner
[44:50] May the questioner may profer as to what
[44:52] questions would be posed if given the
[44:54] opportunity okay then thank you I I was
[44:57] reading I wasn't writing as fast as I
[44:59] was listening so thank you um and I can
[45:01] appreciate you know everything that uh
[45:04] you know Mr Blitz has said with regard
[45:05] to uh uh his position uh obviously we
[45:09] have a couple problems number one is we
[45:11] spent a whole evening which uh resulted
[45:14] in very early on in this process of Mr
[45:17] Blitz raising his right hand and and
[45:20] being absolutely positively
[45:22] unequivocally sworn it um now the
[45:26] purpose of being sworn in is there is an
[45:28] expectation by the public that what
[45:30] they're hearing is the truth um because
[45:33] there are major civil and criminal
[45:35] sanctions as a result for failure to lie
[45:38] under oath we went through a whole
[45:40] evening and that occurred F furthermore
[45:43] um uh and know and I I only have limited
[45:48] documents that I'm going to be
[45:49] presenting but I like might as well
[45:50] present one right right now and this is
[45:52] an email uh exchange between Mr susman
[45:55] and Miss wall
[45:57] uh discussing uh another is this related
[46:01] to Mr the questioning of Mr Blitz it is
[46:04] okay and and and primarily is that Mr
[46:07] Blitz would be subject to
[46:09] cross-examination and not only that but
[46:11] the chair Mr uh susman even said that
[46:14] chair and I and he and I agree as to the
[46:17] following including the fact that Mr
[46:19] Blitz would be subject to cross-
[46:21] examination so indeed and this was back
[46:24] in January
[46:28] and these are emails if you like me to
[46:29] I'll be more than happy to introduce now
[46:30] thank
[46:31] you I object as there's no party that
[46:36] he's representing that he would have
[46:39] that knowledge so that's again um sort
[46:42] of I should be able to examine each and
[46:45] every document within town hall to
[46:48] provide me equal footings as he is being
[46:51] provided again this is
[46:54] very this is what everybody's making a
[46:56] claim to
[46:57] things aren't just straightforward yes
[47:01] um the objective is to get into the
[47:03] record so that we're all on the same any
[47:05] more of the copy I do have extra
[47:07] copies onto the same page um but yes but
[47:11] miss wall could be here and then he
[47:13] could submit that but otherwise that's
[47:16] just out of
[47:20] procedure we have really I think part of
[47:23] why it's difficult is we have wide
[47:25] openen procedures here is uh something
[47:29] of this rigor that the lawyers are
[47:30] accustomed to is not something we have
[47:32] procedures for um and so we're trying to
[47:36] do the best we can to figure out how to
[47:38] manage this and going forward obviously
[47:40] if we know you know we knew everything
[47:42] in advance it would be much much better
[47:44] laid out but unfortunately I
[47:47] can't Sor just from myp
[47:51] yeah my objection is can we hold a
[47:54] minute and give Mr susman yes
[48:18] while Mr is reading I just want to
[48:20] confirm that has been accepted in
[48:21] evidence no yeah I I still reserve my
[48:24] right to make an objection I'm still
[48:25] reading it okay
[48:50] one let us know when you are okay um
[48:54] here you've read it to your satisfaction
[48:56] Mr Blitz
[49:10] so my first concern is that there's
[49:13] Communications about the process and
[49:16] procedures of the board that are
[49:18] occurring without me being present in
[49:21] the
[49:23] communications completely improper but
[49:26] what I don't understand about these
[49:28] communications is whether these are
[49:33] Communications
[49:36] from Miss
[49:39] wall and Mr
[49:44] susman well but it's also got members of
[49:47] the board it well it's got the chair I
[49:50] apologize just the chair
[49:57] and I I guess I'm trying to my question
[50:02] is how did Mr hounds have a copy of of
[50:10] Correspondence that's occurring outside
[50:12] of the operation of the public
[50:15] hearings for
[50:18] communications between Town
[50:22] staff and Mr
[50:24] susman and I don't know
[50:28] whether at at January 5th
[50:32] 2024 Miss wall had assumed the position
[50:36] of zoning administrator at that time but
[50:39] she subsequently has and then that would
[50:42] mean she's a party
[50:44] communicating with Mr susman she had she
[50:47] had or had not 2024 uh January 5th of
[50:57] let let let me know because number one
[50:59] Miss B is not a party and number two he
[51:01] I can address the comments he's made the
[51:04] officer the zoning administrator is one
[51:07] of the parties we alleged commit error
[51:09] by law she is a
[51:14] party just in the same way the Planning
[51:16] and Zoning commission
[51:18] is doesn't mean I can call her because I
[51:21] don't have the power to subpoena
[51:23] Witnesses just like anybody else doesn't
[51:25] have that power
[51:28] so I'm going to object to the in in to
[51:31] the introduction of communications
[51:33] outside the
[51:34] record between the board's Council and
[51:39] the board members and the Town
[51:42] Administrator as I don't think they
[51:44] properly come into evidence in any way
[51:48] and I'd also just make the point that
[51:51] any discussion outside of this context
[51:53] doesn't really
[51:55] change the outcome of my respectful
[51:59] declination to be
[52:03] cross-examined I can say pleas and
[52:07] basically the reason for this email was
[52:10] because the public was informed and was
[52:13] communicated to the public with regard
[52:16] to this process which public should be
[52:18] the ultimate uh you know truth barrier
[52:21] but the public was informed that indeed
[52:24] through the almost 30 hours of of
[52:27] narrative by Mr Blitz in this that they
[52:29] would be opportunity to cross-examine
[52:31] him as I am the member of the public and
[52:33] he's speaking for me okay except for
[52:37] Mr except for Mr Deval then the rest of
[52:40] the public then would like to an
[52:41] opportunity and they they would be
[52:43] informed that indeed the the Mr Blitz
[52:47] would be subject to
[52:48] cross-examination they were asked about
[52:50] it and it was confirmed that he would uh
[52:54] that we are definitely going to be
[52:55] bringing that up obviously you know in later on but one
[53:25] moment
[53:55] e e
[54:28] all right the uh Sharon what's our
[54:30] latest exhibit
[54:34] number we will enter this in as exhibit
[54:37] 70 we are denying the objection
[54:40] overruling the objection and this will
[54:41] come in uh the chair would like I
[54:44] believe we already have a 70 that's
[54:46] sorry
[54:52] 711 pound you may make your
[54:57] uh statement regarding what is in the
[55:00] contents of this and I would like you to
[55:02] briefly pause at the end of it so I can
[55:04] point out one section okay uh basically
[55:07] this uh under the email which is uh
[55:10] number one addressed as you know I spoke
[55:12] to the chair and he and I agree on the
[55:15] following and that indeed um uh number
[55:18] three and this is on the email uh dated
[55:21] January the 19th the chair will give the
[55:24] parties a record and opportunity to ask
[55:25] questions of Mr Blitz at the end of the
[55:27] testimony and presentation questions
[55:29] should generally be limited to the scope
[55:31] to address information presented by Mr
[55:33] Blitz and that was the email from Mr
[55:35] susman on the other email can you read
[55:38] the last line of that block oh sure um
[55:40] Mr Blitz May object to any questions and
[55:42] the chair May rule on Mr blitz's
[55:44] objection on a case- by case
[55:46] basis um that is not exactly what we're
[55:49] doing here but I feel it is close
[55:51] enough um that uh you may ask him
[55:55] questions and he may opt not to
[55:58] answer oh it's my understanding he's not
[56:00] answering anything yes okay we can be
[56:03] here for a couple
[56:04] days how you'd like to do it okay um uh
[56:09] and then also uh so
[56:16] Mr so
[56:20] uh so Mr Blitz uh earlier on I just to
[56:24] clarify we are accepting the lay of the
[56:28] land with regards to questioning each
[56:31] other
[56:32] we given given all the objections and
[56:36] problems here I would ask Bo please to
[56:38] review my
[56:41] rebuttal I mean that clearly outlines
[56:43] how just inappropriate
[56:46] and um I mean it was just a pretty
[56:50] embarrassing to be for lawyers to treat
[56:53] each other that way we look at I look at
[56:55] lawyers we with respect we we we
[56:59] understand we need we need to keep this
[57:00] a little we're trying to
[57:02] follow what do you what are you trying
[57:04] to follow I'm trying you're letting him
[57:07] talk out here I'm trying not let him
[57:08] talk you're not you're not saying
[57:10] anything about it you you you've already
[57:13] said you don't have you're making up
[57:15] procedures as you're going and I and I
[57:17] think you guys are really putting forth
[57:19] a lot of great effort but but you
[57:22] refused me to be able to ask a second
[57:24] question I didn't refuse made you made
[57:27] that determination but there's a whole
[57:29] lot of other things you're just playing
[57:31] it by ear we're we're trying not to uh
[57:34] we'd like sit down gallery to
[57:38] please okay we're trying to have it so
[57:41] that we can finish finish Mr blitz's
[57:43] presentation which he's done which Then
[57:44] followed by his questioning which is
[57:46] Then followed by Mr pound's presentation
[57:47] followed by his questioning and then it
[57:49] opens the floor to the public and you
[57:51] can say anything within the context of
[57:55] this case that you would like to say uh
[57:57] to the board or give presentation on
[58:00] that is the general rule of how we're
[58:01] trying to follow this and we are doing
[58:04] the best that we can so so you had just
[58:07] been asking a question about we were
[58:10] sure of something but I wasn't quite
[58:12] sure what you were asking so um the
[58:14] statement I was making sure that we are
[58:17] we're ready to begin questioning of Mr
[58:21] Blitz by Mr pounds with the caveat that
[58:23] you may opt not to answer I I have
[58:26] already opted you should just now be
[58:28] like a profer just like he did for Mr f
[58:32] are we beginning that Mr pounds I want
[58:34] to make sure I'm clear so I can ask a
[58:36] bunch of questions that he's already
[58:37] said he's not going to answer yes um uh
[58:41] and and now since I could make a profer
[58:44] which I could probably do on closing uh
[58:47] you and you guys will have closing as
[58:48] well that will follow everything
[58:50] absolutely so I want to make sure
[58:55] that okay let's just let's just go down
[58:57] the road a little bit and see where we
[58:58] can go okay so Mr Blitz you know you
[59:01] were here during the beginning of these
[59:19] proceedings that's a foundation to make
[59:21] sure that he indeed admits that he was
[59:23] here I mean here not here
[59:30] yes Mr uh Mr Blitz is refusing to answer
[59:32] he may proceed with your questions okay
[59:35] are we talking to the mic please oh I'm
[59:37] sorry so uh and Mr Blitz you were here
[59:41] this that evening in which you raised
[59:42] your hand and and sworn in to be a
[59:46] witness under
[59:49] oath so is your is your refusal to even
[59:53] respond a a refusal to respond
[59:56] Mr pounds just like you did last time I
[59:59] have blanket refused it's now your turn
[1:00:01] to make a profer which is just a list of
[1:00:03] the questions that you would have asked
[1:00:05] if you had been given the opportunity
[1:00:07] you did this at the last hearing with Mr
[1:00:09] fiser I'm in the same position as Mr
[1:00:11] Fisher I've declined to answer questions
[1:00:15] on
[1:00:17] cross-examination you can then put into
[1:00:19] the record so that they are preserved
[1:00:22] your list of questions so don't pause
[1:00:25] after each one just just like he did for
[1:00:26] Mr
[1:00:28] fer if I don't mean to instruct you but
[1:00:30] I'm just saying that's that's my
[1:00:33] intention about or or uh understanding
[1:00:35] about what the board's asking right now
[1:00:37] the board's understanding as
[1:00:40] well I mean so want to make sure because
[1:00:43] I uh first of all then I want to make
[1:00:47] sure that we have I did a motion last
[1:00:50] time that that indeed Mr Blitz you know
[1:00:53] made us aware that he was not under
[1:00:55] Earth I did a motion to strike his
[1:00:57] entire testimony um that indeed to make
[1:01:00] sure that anything he said was not in
[1:01:02] evidence was not part of this case as as
[1:01:05] he just stated that he was a lawyer
[1:01:07] making arguments okay if that is true
[1:01:11] then anything that you would have hear
[1:01:13] for the heard for the last 30 hours from
[1:01:16] him then we have to understand is not
[1:01:18] evidence is not testimony is not under
[1:01:21] oath and this and is nothing more than
[1:01:25] him making
[1:01:27] verbal comments as opposed to anything
[1:01:29] else uh I made that motion before it was
[1:01:32] denied I'm going to make it again now um
[1:01:36] because I can tell you because that is
[1:01:38] part of where I'm going to be going in
[1:01:40] the case that motion is also denied you
[1:01:42] may proceed with your profer thank you
[1:01:44] uh so
[1:01:47] uh okay so we're going to the profer so
[1:01:50] first of all I would have asked
[1:02:09] okay these are going to be the proper
[1:02:10] questions that I I would have asked so
[1:02:13] Mr blitz so to make sure we understand
[1:02:15] each other you and I just I just said
[1:02:17] you swore yourself in but now you've
[1:02:19] made the decision that you were not
[1:02:20] going to be indeed uh testifying or even
[1:02:23] though it was under oath what was the
[1:02:25] reason that you decided to change your
[1:02:27] mind isn't it true that basically the
[1:02:29] reason a person is sworn in is because
[1:02:31] there's an expectation that you're
[1:02:32] telling the truth are you now telling
[1:02:35] the public that indeed you can no longer
[1:02:37] have the expectation to tell a truth
[1:02:39] because you refu you've decided to
[1:02:41] change your mind as to you're being uh
[1:02:44] indeed under oath with regard to these
[1:02:46] testimony uh is that the reason or is
[1:02:48] there some other reason will you please
[1:02:49] tell what the reason is for you know for
[1:02:52] this testimony um with regard to the
[1:02:54] previous exhibit
[1:02:56] which indeed you introduced and which
[1:02:58] you showed that indeed permits had been
[1:03:00] issued were you indeed the attorney for
[1:03:02] RNR and also the attorney for the town
[1:03:05] during this process did you shepher the
[1:03:08] those previous permits through the town
[1:03:10] uh and and with regard to received
[1:03:13] approvals in that way you also heard the
[1:03:15] testimony of Mr Woodburn with regard to
[1:03:18] his testimony was he indeed the town
[1:03:20] attorney the town engineer at the time
[1:03:23] uh and also the engineer for our RNR and
[1:03:27] indeed what did uh he act as under both
[1:03:30] capacities uh during that time uh isn't
[1:03:33] it true that the town engineer is very
[1:03:36] important to the town and also to the
[1:03:37] public to make sure that indeed they are
[1:03:40] given an opportunity to review
[1:03:42] everything that needs to be done with an
[1:03:44] application uh as opposed to just doing
[1:03:47] yourself here tonight the testimony was
[1:03:50] that indeed um uh Mr uh Newton was
[1:03:54] indeed the the uh engineer but you were
[1:03:57] talking about the projects with regard
[1:03:59] to the evidence which was entered
[1:04:01] earlier uh in this process and indeed uh
[1:04:05] whether that uh he was the engineer
[1:04:07] during that time and who was in essence
[1:04:09] operating in the best interest of the
[1:04:11] town during that time isn't it true you
[1:04:13] were also the uh attorney for the board
[1:04:15] uh Planning Commission at that time and
[1:04:17] helped Shepherd those other uh permits
[1:04:20] through uh uh the Planning Commission at
[1:04:23] time to receive those permits that
[1:04:25] indeed permits were issued and indeed
[1:04:27] the uh isn't that correct and indeed
[1:04:29] with regard to those permits that were
[1:04:31] being issued uh those permits expired
[1:04:34] they were renewed and they expired again
[1:04:37] some 10 years have passed and then uh
[1:04:40] there was a decision not uh to uh renew
[1:04:44] those applications until the
[1:04:46] comprehensive plan process was uh in in
[1:04:49] Essence beginning that uh with regard to
[1:04:53] the pl comprehensive plan process uh you
[1:04:56] were aware that the zoning administrator
[1:04:58] at the time said no with regard to these
[1:05:00] applic uh these types of uses the
[1:05:02] Planning Commission that indeed
[1:05:04] according to Mr um uh Donovan that
[1:05:08] indeed the Mr Donovan stated that they
[1:05:10] didn't even bother going to the Planning
[1:05:12] Commission to review any type of
[1:05:14] testimony or application that indeed
[1:05:16] that was their decision uh and then
[1:05:19] indeed no application or request was
[1:05:21] made of town council with regard to uh
[1:05:25] that decis ision to uh uh request that
[1:05:29] these properties remain in any type of
[1:05:31] Zone whatsoever that indeed the pro then
[1:05:35] Pro the process then began uh to the
[1:05:38] board of
[1:05:42] appeals that indeed if you were uh the
[1:05:45] attorney for the town and also for the
[1:05:48] developer uh whether this created a
[1:05:50] conflict of interest issues in
[1:05:52] representing both parties
[1:05:56] and indeed is it uh since you were being
[1:05:58] paid by the town that in desence did you
[1:06:00] have an obligation to act in the best
[1:06:02] interest of the town with regard to
[1:06:04] these application uh with regard to
[1:06:05] these
[1:06:06] applications uh so after those permits
[1:06:09] expire 10 years go by and then uh they
[1:06:12] begin the comprehensive plan process the
[1:06:15] uh the engineer earlier on testified
[1:06:17] that indeed things change uh and indeed
[1:06:20] things do change um the area which is
[1:06:24] now classified as a flood plane and uh
[1:06:27] and indeed the your request with regard
[1:06:30] to these applications is to indeed build
[1:06:33] uh houses in a flood plane uh and isn't
[1:06:36] it true based upon your experience as a
[1:06:38] town attorney that flood plane is going
[1:06:40] to cause harm to the public and also
[1:06:43] with regard to your uh uh the public can
[1:06:47] be harmed and also create a tremendous
[1:06:49] financial burden on the town with regard
[1:06:51] to this town uh harm to that can happen
[1:06:54] to the public that indeed that that
[1:06:57] indeed do you think based upon your
[1:06:59] previous experience as the town attorney
[1:07:01] whether indeed building houses in the
[1:07:03] flood plane is
[1:07:05] appropriate the again uh and I wanted to
[1:07:08] confirm for the record that indeed the
[1:07:10] zoning administrator said no to this use
[1:07:13] the uh you never bothered to go for
[1:07:15] before the Planning Commission uh and
[1:07:18] also you never bother to actually make a
[1:07:20] formal application to the Town
[1:07:24] Council the the uh the town then uh Town Council
[1:07:30] then passed a moratorium and and indeed
[1:07:33] uh uh I would ask your opinion based
[1:07:35] upon the Town Council whether indeed the
[1:07:39] uh planning the um uh board of appeals
[1:07:42] can indeed overturn a decision of the
[1:07:45] Town Council that that is who is the one
[1:07:48] who actually runs the town who's the one
[1:07:49] that makes decisions of the town and
[1:07:51] with regard to your uh definition of and
[1:07:55] your belief that indeed the uh board of
[1:07:59] appeals has these Powers which I'm going
[1:08:01] to get into in one minute that indeed
[1:08:03] they can overturn the Town Council uh
[1:08:06] I'm also going to be introducing um a
[1:08:09] new town ordinance that's going to be
[1:08:11] coming in dealing with critical area
[1:08:13] changes and then I'm going to ask you
[1:08:15] whether in your opinion based upon your
[1:08:17] experience that indeed the board the
[1:08:19] board of appeals can overturn the Town
[1:08:21] Council with regard to that uh uh
[1:08:24] critical area legislation since indeed
[1:08:28] uh this will affect any type of decision
[1:08:30] with regard to granting your application
[1:08:32] or granting your request by the board
[1:08:35] should the board even be reviewing that
[1:08:37] application uh or does the board can the
[1:08:39] board unilaterally just decide to
[1:08:41] overturn the Town
[1:08:47] Council indeed the um uh with regard to
[1:08:50] the evidence which has already been
[1:08:53] introduced uh indicating that the chair
[1:08:55] and Mr susman both agreed that you would
[1:08:58] be subject to
[1:08:59] cross-examination uh and now you've
[1:09:02] decided not to whether that indeed
[1:09:04] creates some type of um of um uh issue
[1:09:09] with regard to making sure the public is
[1:09:11] fully informed making sure the public
[1:09:13] does have an opportunity to participate
[1:09:15] since indeed you made that decision to
[1:09:17] swearing in at the beginning of the
[1:09:19] process and then suddenly at the end of
[1:09:22] this process you made the decision to
[1:09:24] indeed you were not under oath uh and
[1:09:27] obviously you were going to have to make
[1:09:28] the determination as to whether the
[1:09:30] public was indeed misled who misled him
[1:09:33] under what conditions were they were
[1:09:34] misled and indeed uh uh should issues be
[1:09:39] addressed with regard to the uh public
[1:09:41] being misled with regard to uh the fact
[1:09:44] that indeed they were informed as well
[1:09:46] as the fact under oath you swore and did
[1:09:49] the did the presentation uh and
[1:09:52] absolutely the uh ceremony of swearing
[1:09:55] in and then suddenly at the end of the
[1:09:58] case you decided to indeed make change
[1:10:00] your mind I would also want to make uh
[1:10:02] find out when exactly you decided to
[1:10:05] change your mind and if indeed the
[1:10:07] public uh uh was indeed intentionally
[1:10:10] misled as a result of that decision and
[1:10:13] the timings of those decisions uh next
[1:10:15] we want to discuss all the powers which
[1:10:18] have been uh enumerated to this board of
[1:10:21] appeals uh by you and apparently the
[1:10:25] powers are quite extensive as to what is
[1:10:28] happening uh in other words uh
[1:10:30] apparently the board of appeals has the
[1:10:33] power to order individuals to engage in
[1:10:36] certain acts I was unaware that the
[1:10:38] board of appeals had any power
[1:10:39] whatsoever to order any individual but
[1:10:42] apparently uh you you now do the power
[1:10:45] is to order Town officials to engage in
[1:10:48] particular acts the power over
[1:10:50] administrative agencies telling the uh
[1:10:53] Planning Commission what they can and
[1:10:55] can't do the power is to tell
[1:10:56] administrative agencies how to hear
[1:10:58] cases in other words you are now going
[1:11:00] to be telling them where how and where
[1:11:02] they can hear the case and what they can
[1:11:04] do the power to of the board of appeals
[1:11:06] that can tell administrative agencies
[1:11:08] how to rule on cases because it's
[1:11:10] presumed that indeed if you're telling
[1:11:12] them to hear the case then you're also
[1:11:14] telling them how they indeed can rule in
[1:11:16] the case and they must follow your
[1:11:18] instruction with regard to how they can
[1:11:20] hear a case the power to tell the
[1:11:22] administrative agencies how that they
[1:11:24] will hear cases on an expedited basis uh
[1:11:27] the powers that would require them to
[1:11:29] follow a particular
[1:11:32] law uh you know with regard to determination
[1:11:38] uh later it's been determined that
[1:11:39] indeed the board of appeals now has what
[1:11:41] is apparent revenue and taxing Authority
[1:11:44] as indeed Mr uh Blitz has informed the
[1:11:48] public and the Town Council that indeed
[1:11:50] uh revenue and taxing issues that may be
[1:11:53] occurring will now be coming through the board of appeals indeed that
[1:11:57] indicates that indeed the board of
[1:11:58] appeals now has revenue and taxing
[1:12:00] Authority which can be reviewed also
[1:12:03] based upon uh Mr um Fishman um um uh
[1:12:09] Fishman fish Fisher I'm sorry um that
[1:12:13] indeed the this board now has apparent
[1:12:15] authority over taking issues uh I would
[1:12:18] ask the Mr uh Blitz whether he is aware
[1:12:21] whether the board actually understands
[1:12:23] what taking issues are uh and also I
[1:12:27] would ask that indeed uh has has he is
[1:12:30] he aware of any possible issue with
[1:12:32] regard to taking of property that can be
[1:12:34] heard by an administrative board other
[1:12:35] than by courts um uh and also uh the
[1:12:40] general power of the uh of the board of
[1:12:44] appeals to overturn Town Council in
[1:12:47] making decisions which which without
[1:12:50] that determination to come first then in
[1:12:53] essence uh the rest of the uh this whole
[1:12:56] process becomes moot so in essence the the underlying decision that has to
[1:13:00] be made is that you have the authority
[1:13:02] to overturn Town
[1:13:06] Council uh I would ask Mr Blitz
[1:13:08] including the fact that um uh whether
[1:13:11] indeed uh these courts types of cases
[1:13:15] indeed should be handled in the courts
[1:13:17] or by the board of appeals if is by the
[1:13:19] board of appeals the uh I would ask why
[1:13:22] he's the one that chose the board of
[1:13:23] appeals obviously we're here because he
[1:13:25] chose them uh no one else chose them but
[1:13:28] him he's the one that made the decision
[1:13:30] and in essence uh I'm going to ask him
[1:13:33] why um uh and also I'm G to ask him the
[1:13:37] question of that something that was said
[1:13:39] earlier by the chair in in an earlier
[1:13:41] meeting we generally do not handle this
[1:13:44] type of case uh that's very prophetic
[1:13:47] and also the question is why are we here
[1:13:50] uh in doing this but again that was his
[1:13:52] decision to bring this type of case uh I
[1:13:54] would also ask him based upon his
[1:13:56] experience whether and I think he even
[1:13:58] brought it up tonight the board of
[1:14:00] appeals can interpret Supreme Court
[1:14:03] cases uh indeed many courts don't even
[1:14:06] uh interpret Supreme Court cases because
[1:14:09] indeed the Supreme Court interprets
[1:14:11] their own cases as opposed to an
[1:14:13] administrative agency uh especially uh
[1:14:16] lay preval on a board of appeals uh and
[1:14:18] then I would ask questions such as
[1:14:20] whether the uh board of appeals can uh
[1:14:24] indeed overturn decisions of the Town
[1:14:26] Council and whether he is aware of any
[1:14:28] other decisions to overrule those
[1:14:30] decisions of Town
[1:14:39] Council uh I would further ask him uh
[1:14:42] about the uh inth Authority uh that that
[1:14:46] he has that indeed is is being stated by
[1:14:48] Mr Blitz you know regarding that
[1:14:50] authority to make those
[1:14:52] decisions I would ask uh uh him that
[1:14:55] indeed uh if he was aware of my letters
[1:14:59] which have been in uh introduced before
[1:15:01] the board that are part of this record
[1:15:03] that indeed the uh being informed by the
[1:15:07] uh individuals from the town in other
[1:15:10] words the Town Council the zoning ad
[1:15:13] administrator and also the uh uh Town
[1:15:15] Administrator that indeed the board of appeals does not have this
[1:15:21] Authority whatsoever and that in essence
[1:15:25] uh the decision by this board of appeals
[1:15:28] to indeed overturn that uh uh those
[1:15:31] decisions and that information so in
[1:15:34] essence uh and also information that
[1:15:37] indeed make sure this board is on notice
[1:15:40] that indeed the proper authority to
[1:15:41] handle this type of jurisdiction if
[1:15:43] there is a claim by uh Roden reel would
[1:15:47] be the courts um that indeed that's
[1:15:50] what's going to be the true issue here
[1:15:52] uh because one way or the other it's
[1:15:54] going to happen you know that's what's
[1:15:56] going to happen here so in essence also
[1:15:59] uh I would ask Mr Blitz in essence if
[1:16:02] indeed the mechanism in which he he
[1:16:05] would think that the board of appeals
[1:16:08] would intend to enforce a particular
[1:16:11] order uh I think that would be very
[1:16:13] interesting that indeed how the board of
[1:16:15] appeals plans to enforce the order
[1:16:18] because if indeed they are try going to
[1:16:21] try to enforce it uh uh through the
[1:16:25] courts well then in essence that's what
[1:16:27] we've been saying that this proceeding
[1:16:29] should be in the courts the whole time
[1:16:31] and in essence the last 30 hours have
[1:16:33] been a complete waste of the Public's
[1:16:35] time and also as I put down it's
[1:16:37] basically becomes a sham because indeed
[1:16:41] it should have been in the courts to
[1:16:42] begin with and if you decide that indeed
[1:16:44] you have the power but can't enforce it
[1:16:47] then indeed Mr Blitz is indeed
[1:16:49] misleading the public and also the town
[1:16:51] uh the board of appeals so that's going
[1:16:53] to be interesting the way
[1:16:55] indeed uh the the uh board of appeals
[1:17:00] tries to enforce a particular order when
[1:17:02] according to the records that have
[1:17:04] already been submitted and are a part of
[1:17:06] this record both the zoning
[1:17:08] administrator the Town Administrator and
[1:17:11] the board of appeals uh and the Planning
[1:17:13] Commission uh intend not to follow your
[1:17:17] instructions because indeed you don't
[1:17:19] have the authority and it's going to be
[1:17:21] interesting to see what happens indeed
[1:17:22] when you make an order and it ignored by
[1:17:25] these by these uh
[1:17:40] agencies uh and then I would ask Mr
[1:17:42] Blitz which is an interesting question
[1:17:44] uh he has said a number of times that he
[1:17:46] believes that uh one of the powers that
[1:17:49] you have uh is to issue this permit
[1:17:53] yourself uh uh in other words don't make
[1:17:56] an order to someone else don't try to
[1:17:58] get someone else to to engage a
[1:18:00] particular act in which apparently he's
[1:18:03] saying with regard to all those Powers
[1:18:04] you do but in essence that that the
[1:18:06] board of appeals has the power to issue
[1:18:09] the permit themself uh and uh and I said
[1:18:13] it before and I'll say it again I
[1:18:14] encourage you to do it I mean if you got
[1:18:16] the power sign off on it and indeed
[1:18:20] issue these permits yourself okay now
[1:18:24] the downside okay which of course you
[1:18:25] haven't signed when you whenever you
[1:18:27] wish and everybody to sign off on them
[1:18:29] everybody up there to sign off on them
[1:18:31] uh because what's important if there is
[1:18:34] any exposure any liability or any issues
[1:18:36] the person excuse me uh sorry for
[1:18:39] interrupting but aren't these questions
[1:18:41] you're supposed to be uh posing
[1:18:43] hypothetically to Mr uh as opposed to
[1:18:47] making your argument your summation your
[1:18:49] closing argument okay well okay then I
[1:18:52] will redirect that question okay Mr
[1:18:53] Blitz has said a number number of times
[1:18:55] that indeed the board should indeed
[1:18:57] issue the permit okay and uh he has said
[1:19:00] a number of times and to move this along
[1:19:03] I agree okay indeed I agree and and as a
[1:19:06] proper to make sure the board is aware
[1:19:09] you know whenever you sign off on the
[1:19:10] permit it means that you are liable so
[1:19:13] indeed if anybody gets flooded if
[1:19:15] anybody gets harmed if anybody in
[1:19:18] essence uh uh is is in any way damaged
[1:19:22] as a result of these houses going in a
[1:19:24] flood plane it's not going to be the
[1:19:26] town it's not going to be the Town
[1:19:27] Council it's going to be the board of
[1:19:29] appeals okay and indeed he's the one
[1:19:32] requesting it I encourage you to do it
[1:19:34] indeed if you've got the power to do it
[1:19:36] we're we're going on and on with regard
[1:19:38] to this additional power that he says
[1:19:39] you have which that that's perfectly
[1:19:42] fine to do can you please direct this at
[1:19:45] him that's what the profer is right that
[1:19:46] no the profer was to you okay because
[1:19:48] indeed he wasn't going to know indeed
[1:19:51] whether you had the power to do this or
[1:19:52] the liability as a result of it purpose
[1:19:55] of what we're doing here is instead of
[1:19:56] cross examination you're giving a proper
[1:19:58] which are the questions you would have
[1:19:59] asked him I think addressing us
[1:20:02] completely different matter
[1:20:04] arew address that in make sure the board
[1:20:07] was informed with regard to that indeed
[1:20:10] they would be personally liable you know
[1:20:12] for the issuance of the permit that you
[1:20:14] suggested thank you um uh
[1:20:26] well I think those are the questions
[1:20:27] that I would have immediately for Mr
[1:20:33] Bliss okay um we
[1:20:38] are but on time so we are going to open
[1:20:41] the floor up to questions for Mr Blitz
[1:20:44] if you would like to leor announce your
[1:20:47] name
[1:20:52] and it's up to your judgment as to how
[1:20:55] you interpret them because we are
[1:20:57] allowing the public to ask you questions
[1:20:58] whether you interpret them as clarifying
[1:21:00] or cross- examinations is
[1:21:05] okay actually pause uh this been a
[1:21:07] little while let's take five minutes and
[1:21:09] do it again is that all right with you
[1:21:12] it it's only actually really
[1:21:15] quick I listening to here I find that if
[1:21:20] there was
[1:21:22] questions that they could be submitted
[1:21:24] to the board Bo and ask that way from
[1:21:26] the general public that that would be a
[1:21:30] proper way one moment
[1:22:05] unfortunately the questions have to be
[1:22:07] asked at this at this stage in our uh
[1:22:10] process there will not be a further step
[1:22:12] to ask questions of Mr blitz's
[1:22:14] presentation I'll take the five let's do
[1:22:17] five thank you
[1:22:50] way
[1:22:52] actually on or did I did go on
[1:23:02] vacation that was in
[1:23:05] Germany after was after your
[1:23:09] trip no it was fun River
[1:23:13] Cru
[1:23:22] Prague there
[1:23:34] was well Ed
[1:23:44] tourist one
[1:23:53] wall I have
[1:23:56] project you
[1:23:59] think to
[1:24:03] concentration oh that there was
[1:24:18] one and
[1:24:42] seven I really my
[1:24:45] no that
[1:24:58] inter
[1:25:26] all
[1:25:39] [Music]
[1:26:10] and I neighor we live about as far as of
[1:26:16] the building
[1:26:19] there
[1:26:21] research he's been on the board of
[1:26:23] recors the
[1:26:25] home a long time
[1:26:29] very so we work
[1:26:42] closely very
[1:26:45] person it's
[1:26:47] like job
[1:26:52] you go do
[1:26:55] now good C on
[1:26:58] you okay we will resume um once again
[1:27:01] members of the public if you have
[1:27:03] questions about um Mr blitz's
[1:27:06] presentation you may step forward and
[1:27:09] ask
[1:27:21] them um just to clarify these are just
[1:27:24] profer questions cuz he's not answering
[1:27:25] anything uh no he is he has license to
[1:27:28] answer if he so chooses he may blank it
[1:27:31] or individually
[1:27:35] however okay um to help you out Miss
[1:27:39] Blackwelder whether it's Miz or miss or
[1:27:42] um if you're asking me questions that
[1:27:44] are in the nature of
[1:27:46] cross-examination then I'm going to
[1:27:48] decline to answer them and you should
[1:27:49] profer you're asking questions about the
[1:27:52] General application our case
[1:27:54] what something that I would it's not a
[1:27:59] factual question but a question about
[1:28:03] the arguments that have been presented I
[1:28:04] can answer those so I don't I don't know
[1:28:07] whether you're trying to cross-examine
[1:28:08] me as a witness or you're just trying to
[1:28:10] ask the applicant questions about the
[1:28:13] presentation that's been made so far
[1:28:16] okay so so I'm not a lawyer so I
[1:28:18] wouldn't know the differentiation so why
[1:28:21] don't you ask them in all yeah um
[1:28:27] the first question is are you aware that
[1:28:29] the board of appeals does not have the
[1:28:30] power to rule on a moratorium would you
[1:28:33] agree with that no I would not agree
[1:28:35] with that it's a question of Law and
[1:28:39] that's I have
[1:28:41] said actually why don't you restate that
[1:28:44] question just to make sure I got it
[1:28:47] correctly Miss blackw Welter can you
[1:28:49] speak this way into the mic so we can
[1:28:52] all hear you could you excuse me while I
[1:28:54] get a piece of paper so I can read
[1:28:56] something from the
[1:28:57] code um it's right at the chair yeah go
[1:29:01] ahead I'll be right
[1:29:22] back excuse
[1:29:28] and I I apologize but there was no
[1:29:30] agenda posted for this and the last
[1:29:34] meeting I was under the oppression that
[1:29:37] Mr Woodburn was going to be questioned
[1:29:39] by Mr pounds and and not that Mr Donovan
[1:29:42] or Mr Blitz would be questioned by
[1:29:45] anyone
[1:29:49] um so I'm a bit unprepared for this
[1:30:12] okay
[1:30:14] um so 290
[1:30:19] d32e confines the duties of the board of
[1:30:22] appeals regarding interpret ation
[1:30:24] questions where it is alleged that there
[1:30:25] is an error made in the enforcement of
[1:30:29] this chapter meaning chapter
[1:30:32] 290
[1:30:34] so is the implementation or a
[1:30:40] resolution to have a moratorium on site
[1:30:43] plan development
[1:30:46] Within Chapter
[1:30:49] 290 it changed the effect of the section
[1:30:55] of the zoning code
[1:30:57] that applied uh required site plan
[1:31:01] review and required the zoning
[1:31:03] administrator to assist with site plan
[1:31:06] review and
[1:31:08] so the allegations made in in our appeal
[1:31:14] is that the board I mean the zoning
[1:31:15] administrator and the Planning and
[1:31:17] Zoning commission failed to follow that
[1:31:20] obligation in
[1:31:22] Reliance upon on a moratorium that had
[1:31:27] was first described as a temporary
[1:31:30] moratorium was then
[1:31:32] extended for an additional three months
[1:31:36] and then after that expiration and the
[1:31:38] comprehensive plan still had not been
[1:31:40] completed we waited 60 days to see
[1:31:42] whether our pending applications would
[1:31:44] be taken up I shouldn't say hour the rod
[1:31:47] and reel applications were taken up they
[1:31:50] were not I sent a letter to the zoning
[1:31:52] administrator and planning zoning
[1:31:54] commission demanding that now that the
[1:31:56] moratorium had expired by its own terms
[1:32:00] that they go ahead and do that that's
[1:32:03] already in evidence um
[1:32:07] that I received no response
[1:32:11] from
[1:32:14] um the zoning administrator Planning and
[1:32:16] Zoning commission um that is the rod and
[1:32:19] reel didn't we received a response from
[1:32:21] Mr pounds
[1:32:24] instead arguing that the moratorium was
[1:32:27] only terminable terminated at the point
[1:32:30] that the Planning and Zoning commission
[1:32:32] and the town administ uh I apologize the
[1:32:35] um Town
[1:32:38] Council uh said so uh or he didn't he
[1:32:42] didn't use those words I shouldn't say
[1:32:43] it but it's an exhibit so I can
[1:32:46] certainly read it if you want but that's
[1:32:48] what the case is about and so your
[1:32:53] question
[1:32:54] is whether it's within the scope of this
[1:32:57] board's authority to rule on such a
[1:33:00] matter on a moratorium correct well
[1:33:03] they're not ruling on the moratorium
[1:33:04] they're ruling on whether it was legally
[1:33:07] effective and therefore a justification
[1:33:09] for a a an adequate legal justification
[1:33:12] for not following the requirements of
[1:33:15] the zoning code which require site
[1:33:17] plan upon submission to be reviewed and
[1:33:22] considered so so it's
[1:33:24] not that the board doesn't have the
[1:33:27] authority to
[1:33:28] overturn an action of the Town Council
[1:33:30] that's not what it's what we're asking
[1:33:33] for we're saying that the re the
[1:33:36] moratorium that the Planning and Zoning
[1:33:38] commission and the zoning administrator
[1:33:39] relied upon for not filing the site
[1:33:41] plans was legally invalid and therefore
[1:33:45] their failure to follow the law was
[1:33:48] invalid in the same way that a board of
[1:33:51] appeals can uh review the
[1:33:54] constitutionality of a law um po versus
[1:33:58] Baltimore that I cited I believe at the
[1:34:01] last hearing of the hearing before um
[1:34:04] and so it's not that they're
[1:34:07] overturning
[1:34:09] the Town Council it's that they're
[1:34:12] saying that the effect of what the Town
[1:34:14] Council did was invalid and therefore
[1:34:17] the administrators were wrong in in
[1:34:19] relying upon it to fail to Grant the
[1:34:23] relief we were seeing seeking uh
[1:34:24] actually I shouldn't say Grant consider
[1:34:27] the applications process
[1:34:30] them nothing in our case presumes that
[1:34:33] they were going to necessarily grant
[1:34:35] them we didn't get them that
[1:34:39] review did that answer your
[1:34:42] question yes
[1:34:45] um did you ever challenge the Town
[1:34:48] Council and the mayor
[1:34:50] legally about the moratorium that you
[1:34:52] claim is
[1:34:54] invalid and do you have a document that
[1:34:57] this board of appeals can rely on
[1:34:59] stating that the moratorium is in fact
[1:35:04] invalid oh no there's not a document
[1:35:07] that would say that this that's what
[1:35:09] this case is turning upon is this
[1:35:12] board's determination we've made the
[1:35:14] arguments as to why it's invalid we had
[1:35:17] couple nights is on that Bas describing
[1:35:20] all the laws that come into play and why
[1:35:23] it was
[1:35:24] invalid um and I should mention that
[1:35:28] even after the moratorium expired the
[1:35:31] applications were not processed and
[1:35:33] therefore you've got a problem there as
[1:35:36] well
[1:35:38] um but um I want to make sure I'm honing
[1:35:42] in on exactly what your question is oh
[1:35:44] you asked me whether there's a document
[1:35:46] no there's no
[1:35:47] document and you asked whether we went
[1:35:50] to the Town Council no we didn't go to
[1:35:52] the Town Council there's no process for
[1:35:55] going to the Town Council in a zoning
[1:35:58] case or to contest their actions I did
[1:36:03] and this is already in evidence I'd have
[1:36:05] to site the exhibit but
[1:36:10] um I did send the mayor and Town
[1:36:14] Council a long letter explain a
[1:36:17] three-page letter it's already in
[1:36:19] evidence explaining
[1:36:22] why it was in appropriate to use a
[1:36:25] resolution uh to pass an ordinance and
[1:36:27] they had to use an uh pass a moratorium
[1:36:31] and that they had to use an ordinance
[1:36:33] that was sent to them uh prior to their
[1:36:36] action in adopting that resolution so
[1:36:38] they obviously disagree but no I we
[1:36:40] didn't go to the Town Council to do
[1:36:43] anything there's no process or procedure
[1:36:45] for
[1:36:47] that did you file a legal challenge to
[1:36:51] the moratorium against the Town Council
[1:36:52] and the mayor
[1:36:54] no and when you say we uh did I
[1:36:58] obviously you're talking about for the
[1:37:00] rotten reel I assume correctly yes sure
[1:37:03] you are your client
[1:37:05] um so are you asking the board of
[1:37:08] appeals to
[1:37:12] decide on the Merit of a moratorium the
[1:37:16] vity of a moratorium in the absence of a
[1:37:19] ruling on the moratorium
[1:37:25] I don't understand your question what
[1:37:27] ruling on the moratorium are you asking
[1:37:29] for or or referencing in your question I
[1:37:32] think that's more my point that there is
[1:37:35] no ruling on the moratorium
[1:37:37] therefore the board of appeals is being
[1:37:40] asked to decide and rule on the
[1:37:43] moratorium is that what you're asking
[1:37:45] them to do being they're as yes they are
[1:37:48] being asked to consider whether it was
[1:37:51] lawful for the Planning and Zoning
[1:37:52] administrator and Zoning administrator and planning
[1:37:57] and zoning commission to rely upon the
[1:38:00] moratorium which was invalid according
[1:38:02] to our theory of the
[1:38:05] case as an excuse for not following
[1:38:08] their statutory obligation to process
[1:38:10] site plans upon being submitted in
[1:38:14] addition the second part of the case is
[1:38:18] that they didn't provide that review
[1:38:23] even though the moratorium had
[1:38:29] expired
[1:38:31] so I don't know whether you're asking
[1:38:33] whether we have to go to court first
[1:38:35] that's a legal question no we don't have
[1:38:38] to go to for court first in in fact many
[1:38:40] instances we have to come to this board
[1:38:41] first to exhaust our administrative
[1:38:43] remedies before we can go to
[1:38:45] court we could have done a declaratory
[1:38:49] judgment action against the ordinance
[1:38:51] but we don't have to but you would agree
[1:38:55] that deciding the valid validity of a
[1:38:58] resolution to implement a moratorium or
[1:39:01] the legality of a resolution to
[1:39:03] implement a Mor moratorium is not within
[1:39:07] scope of this board I would not agree
[1:39:09] with that I would say it's absolutely in
[1:39:11] the scope of this board that's
[1:39:13] what the courts have held is that the
[1:39:18] predicate Acts or the legal uh legal
[1:39:22] basis for administ
[1:39:24] action if it's either unconstitutional
[1:39:26] or unlawful it's up to this board as the
[1:39:29] first body to take a ruling if such an
[1:39:32] appeal is filed we filed that appeal
[1:39:34] it's incumbent upon this board
[1:39:36] to decide whether we've proven our case
[1:39:40] if they do they're going to be the first
[1:39:43] they get the first crack at this and
[1:39:45] that exhausts our administrative
[1:39:48] remedies and you are asking that this
[1:39:51] board
[1:39:53] make that
[1:39:55] determination without your providing
[1:39:58] proof within your appeal that there has
[1:40:01] been a ruling by a body who is
[1:40:03] authorized to make that ruling on a
[1:40:05] moratorium there is no such body that
[1:40:08] makes that ruling that that doesn't
[1:40:11] happen
[1:40:13] there's we don't go and get a ruling
[1:40:15] about the moratorium and then bring it
[1:40:17] to this board we bring it to the board
[1:40:21] first they decide whether we're right
[1:40:25] that the moratorium was invalid and
[1:40:27] therefore the Planning and
[1:40:29] Zoning commission and the zoning
[1:40:31] administrator should have processed the
[1:40:34] applications or that after it had
[1:40:36] expired that they then should have
[1:40:39] process the
[1:40:41] applications and then we have asked for
[1:40:44] the relief to be crafted in response to
[1:40:47] that but you don't go and get a ruling
[1:40:50] then to then submit to this board
[1:40:52] there's no need to do that or requirement to do
[1:40:58] that or that I know of any way of doing
[1:41:02] that so you're saying that moratoriums
[1:41:04] aren't challenged in court they are yes
[1:41:06] you can oh no you can challenge a
[1:41:09] moratorium in court yes correct so that
[1:41:13] would be something that this board of
[1:41:15] appeals could require as proof to Grant
[1:41:20] your request which is a very big request
[1:41:25] um if they were to Grant what you're
[1:41:28] asking as part of your appeal no because
[1:41:31] we elected to file an
[1:41:35] appeal so that we exhaust our
[1:41:37] administrative remedies which is a
[1:41:39] requirement of Marilyn law in bringing
[1:41:43] certain
[1:41:44] cases so that's what we elected to do
[1:41:48] once we decide to do that the rod and
[1:41:50] Rio has the right for this board to make
[1:41:52] a
[1:41:54] determination about whether we've proven
[1:41:56] our case as I've said
[1:41:58] before what we've what we're alleging
[1:42:01] but you we don't have to go to any court
[1:42:05] or other body to get a ruling to then
[1:42:07] bring to this board of appeals in fact I
[1:42:09] can't imagine what we would then be
[1:42:12] asking of this board if that were the
[1:42:18] case do you have any document from Mr
[1:42:22] jabak was the zoning administrator at
[1:42:24] the time stating that the site plans
[1:42:27] that are subject to this
[1:42:29] appeal are
[1:42:33] complete I'm Sorry Miss uh black waler
[1:42:36] can you repeat that I didn't hear
[1:42:39] it my question
[1:42:42] was do you or your client have any
[1:42:45] document from Mr Chris chak the joning
[1:42:48] the zoning
[1:42:51] administrator um at the time of
[1:42:54] submission of these site plans that
[1:42:56] confirms that the plans that were that
[1:42:58] are subject to this site plan or I'm
[1:43:01] sorry that were subject to this appeal
[1:43:04] were
[1:43:11] complete uh my reason for pausing is to
[1:43:13] F figure out in my own mind whether this
[1:43:15] is getting close to cross-examination
[1:43:18] type question because it's acting asking
[1:43:19] a fact I think it would not and
[1:43:23] therefore she's just asking whether the
[1:43:24] applicant ever received such a a
[1:43:27] statement from Mr jabak and I would say
[1:43:31] no what we re the only response we ever
[1:43:34] received from Mr jabak about the
[1:43:37] applications was the exhibit that we
[1:43:39] filed which is the February 5th email
[1:43:42] telling us that they
[1:43:43] were well I'm not going to repeat what
[1:43:45] that document said that but that was the
[1:43:48] only communication we received from Mr
[1:43:50] jabak that I know of it's the only thing
[1:43:53] in evidence that's for
[1:43:58] sure so Mr jabak returned your money
[1:44:04] for filing the appeals but he did
[1:44:08] not indicate that they were complete now
[1:44:12] the the evidence shows that Miss wall
[1:44:17] returned
[1:44:20] the filing fees for the applications
[1:44:24] although she didn't return the one for
[1:44:26] Harbor Vista North which had been filed
[1:44:29] previously
[1:44:31] and Mr uh jabak would have or had
[1:44:35] nothing to do with that as far as I know
[1:44:37] I
[1:44:38] but that we submitted into evidence the
[1:44:41] letter from Miss wall returning those
[1:44:44] fees didn't it still means the
[1:44:46] applications are continued to be pending
[1:44:48] you can't just deny the pending of an
[1:44:50] application
[1:44:55] you have no way of knowing why Mr dubak
[1:45:00] did not bring those site plans to the
[1:45:02] Planning Commission yes we submitted
[1:45:04] that into the record it was the February
[1:45:06] 5th email that where he stated why he
[1:45:09] wasn't doing it he was saying that this
[1:45:12] was an unreasonable burden on the
[1:45:14] Planning and Zoning Commission in the
[1:45:16] town I mean if you want I'll get out the
[1:45:19] exact exhibit so that you can see it but
[1:45:22] that's
[1:45:23] that was the zoning administrator's
[1:45:25] position with respect to the
[1:45:27] applications it's exhibit
[1:45:32] 7 and that's what I'm referring
[1:45:35] to just let the record show that I'm
[1:45:37] showing Miss Blackwelder ex my copy of
[1:45:40] exhibit
[1:45:41] 7 and that was the only communication we
[1:45:45] received from Mr jabc that I'm aware of
[1:45:47] um with respect to the applications
[1:45:57] okay but this
[1:45:59] letter still doesn't say that a complete
[1:46:04] site plan package was correct I answered
[1:46:07] your question on that we never received
[1:46:09] a any confirmation or anything like that
[1:46:12] from Mr jabak about that it was never
[1:46:16] brought up correct so this this letter
[1:46:20] could just be giving you a heads up
[1:46:23] no it was telling us that a moratorium
[1:46:25] was about ready to be proposed it said
[1:46:29] that there would be a public notice
[1:46:30] going out they gave us the date of the Planning and Zoning commission's
[1:46:36] uh
[1:46:37] intended
[1:46:38] moratorium um and that that was the
[1:46:41] reason you know that the site that that
[1:46:44] was his response to the site
[1:46:47] plans the filing of the site plan
[1:46:51] applications okay
[1:46:58] so you said yourself Chris tobia cannot
[1:47:02] be subpoenaed is that correct my
[1:47:04] understanding is that nobody can be
[1:47:06] subpoenaed in this board okay and Chris
[1:47:09] tobc did not bring these site plans to
[1:47:13] the Planning Commission correct my
[1:47:15] knowledge no I mean we were never given
[1:47:17] notice of any hearing so when when the
[1:47:19] zoning administrator gets done their
[1:47:22] review
[1:47:23] actually I don't want to testify I'm
[1:47:25] just going to leave it at
[1:47:30] that
[1:47:35] so are complete site is a complete site
[1:47:39] plan package part of your submission to
[1:47:42] this board of appeals yes it's exhibits
[1:47:45] two and three I
[1:47:47] believe so exhibits two and
[1:47:50] three are site plans
[1:47:56] no I apologize exhibit two is
[1:47:59] the
[1:48:01] application because Sharon had it
[1:48:05] her exhibit one would have been the
[1:48:11] um the board
[1:48:14] secretary uh affidavit with respect to
[1:48:16] posting of properties and giving
[1:48:18] certified letters so exhibit two was
[1:48:22] that so let me move
[1:48:24] ahead
[1:48:39] to I apologize it's exhibits five and
[1:48:42] six five was the whole package of all
[1:48:45] the site plans in digital form and six
[1:48:49] was the actual form application
[1:48:55] so the
[1:48:56] complete
[1:49:01] package of your site plans have been
[1:49:04] submitted to this board of
[1:49:06] appeals and you are stating that that package constitutes a complete site
[1:49:15] plan package with everything per the
[1:49:17] code that would be required by the
[1:49:20] Planning Commission to review a site
[1:49:22] plan I'm not going to answer that
[1:49:24] because that's asking me to testify
[1:49:25] about the
[1:49:28] evidence I
[1:49:34] apologize is there something that you
[1:49:36] know of in the code that
[1:49:38] determines when a site plan package
[1:49:41] submitted to the zoning administrator is
[1:49:45] complete well there are standards in
[1:49:50] your zoning code that set forth what is
[1:49:54] supposed to go in an
[1:49:57] application that doesn't
[1:49:59] necessarily validate what we what the
[1:50:02] Roden reel filed as being complete but
[1:50:04] there are standards for what is to be
[1:50:06] included in a site plan yes that's
[1:50:08] listed and it's it's in a couple
[1:50:11] different sections because you would
[1:50:14] have a basic
[1:50:16] application you would have
[1:50:19] the requirements in your section on for
[1:50:25] category one site plans which all of
[1:50:27] these were and then all of these were
[1:50:30] critical area impacted by the critical
[1:50:32] area so that they also had critical area
[1:50:36] plans and program uh documents
[1:50:39] associated with the compliance your or
[1:50:42] the town's ordinance provides those
[1:50:45] required elements of a site plan yes it
[1:50:49] doesn't but there's nothing in there
[1:50:50] that confirms that what we filed meets
[1:50:52] that I'm just saying there are
[1:50:57] requirements so
[1:50:59] if Chris chubak made the determination
[1:51:03] not to bring your site plans to the
[1:51:06] Planning
[1:51:08] Commission at any
[1:51:11] point it feasibly could have been
[1:51:14] because he did not feel like they were
[1:51:17] complete enough for the Planning
[1:51:20] Commission to act on them well you
[1:51:23] normally if a zoning administrator felt
[1:51:25] they were incomplete they would let the
[1:51:27] applicant know whether they're he never
[1:51:31] told us that they were incomplete or
[1:51:33] alluded to it or said you you're missing
[1:51:36] something there was no correspondence
[1:51:38] other than the one I've handed you which
[1:51:40] was
[1:51:41] exhibit one seven so that's the only communication
[1:51:47] we receive from Mr jabak so I don't I
[1:51:50] don't have any basis to believe or
[1:51:53] there's nothing in our evidence that we
[1:51:55] presented to the board that suggests Mr
[1:51:57] chubak was considering those
[1:52:00] questions correct there's nothing in
[1:52:01] your evidence
[1:52:04] however this board does not have the
[1:52:08] capability of
[1:52:10] subpoenaing Mr
[1:52:13] jabak and getting his testimony on this
[1:52:17] topic I understand it correct and I
[1:52:20] would point out that neither did we
[1:52:22] because there'd be a whole lot of
[1:52:23] questions that I would have been able to
[1:52:25] ask Mr jabc that support our
[1:52:29] case right
[1:52:32] um I believe that a court would be well
[1:52:36] suited to facilitate that
[1:52:40] process so just to summarize you did not
[1:52:45] challenge the moratorium legally never
[1:52:48] you never challenge the moratorium
[1:52:49] legally but the legality of the mor
[1:52:52] atorium is a key component of your case
[1:52:56] I would phrase it differently than
[1:52:58] you're asking it this is a legal
[1:53:00] proceeding we are challenging it in a
[1:53:02] legal proceeding it's a required
[1:53:04] proceeding to exhaust our administrative
[1:53:08] remedies
[1:53:10] so your
[1:53:12] first premise was that but but if you
[1:53:16] are using that term to mean we didn't go
[1:53:19] to court about the moratorium first
[1:53:23] that I can confirm I've already answered
[1:53:25] that for
[1:53:27] you are you aware of a section in the
[1:53:32] board of
[1:53:33] appeals uh in
[1:53:38] 290
[1:53:43] um-
[1:53:46] 32 I'm going to apologize I can't bring
[1:53:49] you to the correct spot but I believe
[1:53:51] that appeal there's a a requirement for
[1:53:53] an appeal to be filed within five days
[1:53:57] so did you file an appeal to the board
[1:54:00] of
[1:54:01] appeals by February 10th
[1:54:06] 2021 no and you can't set a deadline
[1:54:11] based upon the non-action or inaction
[1:54:14] anything that's an inaction
[1:54:17] of the administrator continues and so it
[1:54:23] any any requirement that you file an
[1:54:26] appeal within a certain period of days
[1:54:29] has to be predicated upon that action
[1:54:32] being determinable as to when it
[1:54:36] occurred the cont it's been a continuing
[1:54:39] violation up through this date that the
[1:54:41] applications filed by the rod and reel
[1:54:43] have not been processed by either the
[1:54:45] zoning administrator or the Planning and
[1:54:47] Zoning commission despite the moratorium
[1:54:50] having clearly expired
[1:54:55] okay so was the
[1:54:57] inaction that you are agreed
[1:55:01] by did that occur
[1:55:06] before had it occurred by February 5th
[1:55:11] 2021 when this letter was sent to you
[1:55:27] probably not it
[1:55:30] would the
[1:55:33] obligation
[1:55:35] for the review of critical area site
[1:55:38] plans is 60 days following the filing of
[1:55:41] the application so it's possible that Mr
[1:55:45] jabak wrote that letter saying that they
[1:55:48] would pass a moratorium well it's quite
[1:55:51] possible they didn't they wouldn't pass
[1:55:52] the
[1:55:53] moratorium and so 60 days could be the
[1:55:58] deadline for then processing the
[1:56:00] applications if the either the Planning
[1:56:02] and Zoning commission had decided not to
[1:56:04] recommend it or the Town Council decided
[1:56:07] not to pass such a moratorium then the
[1:56:11] rod and reel wouldn't necessarily be AG
[1:56:12] grieved until the deadline for
[1:56:14] processing applications in my opinion um
[1:56:18] just
[1:56:20] because the mere statement that they're
[1:56:22] going to do
[1:56:24] that moratorium isn't sufficient so what
[1:56:28] was the
[1:56:30] date of
[1:56:32] inaction that you are basing your
[1:56:35] appeals case on that was filed within
[1:56:38] five days of that inaction up through
[1:56:41] and including today's
[1:56:42] date what was the start date start date
[1:56:46] the start date that been January
[1:56:49] 209th of 2021 when we filed the
[1:56:53] applications I suppose if you're looking
[1:56:54] for a start
[1:56:57] date but I don't know so if that's the
[1:57:01] case did you
[1:57:03] file an
[1:57:06] appeal by February
[1:57:09] 6 no we did not of 2021 no we did
[1:57:14] not this this appeal was filed
[1:57:28] on June
[1:57:30] 24th
[1:57:36] 2022 and it was filed time in a timely
[1:57:41] fashion
[1:57:43] basically any
[1:57:45] correspondence that occurred up to June
[1:57:49] 19th 2022
[1:57:54] is potentially just
[1:57:56] correspondence and there was a certain
[1:57:58] action
[1:57:59] on by June
[1:58:02] 19th
[1:58:05] 2022 that caused you to file an
[1:58:09] appeal oh are you're asking what caused
[1:58:11] us to file the
[1:58:13] appeal the appeal is required in five
[1:58:16] days by the code your your case not accepting the that it
[1:58:22] requires 5 days but I can say any
[1:58:25] deadline for filing an appeal or action
[1:58:29] where it's involving inaction continues
[1:58:31] so long as the inaction continues our
[1:58:33] appeal involves the allegation that
[1:58:35] Planning and Zoning commission and the
[1:58:37] zoning administrator have failed to meet
[1:58:38] their statutory obligation to process
[1:58:41] the site plans they have failed up
[1:58:42] through and including this date the
[1:58:44] reason we filed this
[1:58:47] appeal was we received a
[1:58:52] letter which is already in evidence from
[1:58:55] Mr pounds saying that the
[1:58:58] moratorium continue to exist even after
[1:59:01] we thought it had
[1:59:03] expired and we said enough is enough
[1:59:07] we're going to take this to the board of
[1:59:11] appeals so you are asking the board of
[1:59:14] appeals to decide on the moratorium you
[1:59:16] didn't challenge the moratorium legally
[1:59:19] Court moratorium to court okay already
[1:59:22] answered
[1:59:23] that I've said we are using the legal
[1:59:26] process that's allowed under Maryland
[1:59:28] law and that includes bringing the
[1:59:29] action to this board of appeals that's
[1:59:31] what we're doing and it's based on a
[1:59:34] moratorium for what you never filed a
[1:59:36] legal case against that's true but we
[1:59:38] don't have to file a legal case against
[1:59:41] to challenge it before this
[1:59:43] board but you would agree that the board
[1:59:47] would somehow have to find
[1:59:52] that moratorium to be legally invalid
[1:59:55] and they are not that is not within the
[1:59:57] scope of what they decide no it's
[2:00:00] absolutely in the scope just like just
[2:00:03] like if we were challenging the
[2:00:05] constitutionality of the action that is
[2:00:08] something that can be brought to this
[2:00:09] board in fact the law is in many
[2:00:13] instances it must be brought first to
[2:00:15] the board po po versus Baltimore was the
[2:00:18] case that started it this is very old
[2:00:20] foundational law of Maryland where they
[2:00:22] wanted to challenge the
[2:00:24] constitutionality of a Baltimore City
[2:00:27] Zoning
[2:00:29] action and the court said no you've got
[2:00:32] to take that first to the board of
[2:00:35] appeals let them decide the issue
[2:00:39] first and even in that case as I relayed
[2:00:44] to the board when I brought that case up
[2:00:49] before the
[2:00:53] party seeking to declare the law
[2:00:56] unconstitutional argued before the court
[2:00:59] that a board doesn't have the authority
[2:01:01] to declare something
[2:01:03] unconstitutional they rejected that said
[2:01:05] no they
[2:01:08] do so that specific point was brought up
[2:01:12] so I don't want to interrupt this I find
[2:01:14] this actually very very good question um
[2:01:17] but we are at time um would you like to
[2:01:21] continue this
[2:01:22] where we leave off during the next
[2:01:23] session or should we give you a couple
[2:01:24] more minutes now I appreciate that
[2:01:28] this this I appreciate the time you've
[2:01:31] given me and the time you've taken I'd
[2:01:34] like to turn it over to the lawyers now
[2:01:36] and
[2:01:38] um I do appreciate it thank you as you
[2:01:41] know I think
[2:01:44] that this is a little bit out of scope
[2:01:46] for the board of appeals and and the
[2:01:49] process doesn't
[2:01:53] uh lend itself to this gravity of
[2:01:56] decision but I do appreciate your time I
[2:01:58] appreciate what you're doing thank you very much remind the public
[2:02:01] that if you if you want to um speak
[2:02:04] outside of the context of what Mr Blitz
[2:02:06] or Mr pounds presents you will have an
[2:02:08] open microphone once they've completed
[2:02:11] which case you can State your own
[2:02:12] expertise even if it you know
[2:02:14] tangentially related to what's been
[2:02:18] provided yes we are going to resume this
[2:02:20] if you have a question for Mr Blitz and
[2:02:22] that will
[2:02:24] be on August 19th 2024 at 6: p.m. um
[2:02:30] sorry not 6 p.m apologies 6:30
[2:02:32] p.m. um the plan is to uh ask questions
[2:02:36] of of Mr Blitz as long as long as there
[2:02:38] are questions available um and at which
[2:02:41] point it will go over to Mr pounds for
[2:02:43] his
[2:02:46] presentation I said what
[2:02:50] I August 9 18 6:30 p.m. yes
[2:02:55] I you will be first first in line uh
[2:03:00] next time okay um un is there any urgent
[2:03:05] business any board members would like to
[2:03:07] bring up this
[2:03:09] point hearing none uh at this time I
[2:03:12] will entertain a motion to adjourn until
[2:03:14] August 19 20124 at 6:30 pm I will make a
[2:03:18] motion to adjourn have a second second
[2:03:20] all in favor hi right this motion is
[2:03:23] adjourned thank you
[2:03:45] everybody hope you guys